TAN CHENG BOCK … Appellant And

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE [2017] SGCA 50 Civil Appeal No 124 of 2017 Between TAN CHENG BOCK … Appellant And ATTORNEY-GENERAL … Respondent JUDGMENT [Constitutional Law] — [Constitution] — [Interpretation] [Constitutional Law] — [President] — [Election] [Statutory Interpretation] — [Constitutional Provisions] This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports. Tan Cheng Bock v Attorney-General [2017] SGCA 50 Court of Appeal — Civil Appeal No 124 of 2017 Sundaresh Menon CJ, Judith Prakash JA, Steven Chong JA, Chua Lee Ming J and Kannan Ramesh J 31 July 2017 23 August 2017 Judgment reserved. Sundaresh Menon CJ (delivering the judgment of the court): Introduction 1 This appeal turns on the correct interpretation of two provisions in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”), Arts 19B and 164. Both provisions were inserted into the Constitution by the Constitution of the Republic of Singapore (Amendment) Act 2016 (Act 28 of 2016) (“2016 Amendment”), which was passed on 9 November 2016 and took effect on 1 April 2017. They were part of a raft of changes affecting the office of the President that were implemented by the 2016 Amendment. Tan Cheng Bock v AG [2017] SGCA 50 2 Art 19B(1) introduces the concept of a “reserved election”. It provides that an election for the office of the President shall be reserved for candidates of a particular community if no person from that community has held the office of President for the five most recent terms of office. “Community” here refers to the Chinese, Malay, and Indian or other minority communities (Art 19B(6)(a)–(c)). As to how and when the framework for a reserved election shall take effect, Art 164 requires Parliament to specify by separate legislation “the first term of office of the President to be counted for the purposes of deciding whether an election is reserved under Art 19B” (“first term”). 3 Parliament subsequently specified, in separate legislation, the last term of office of President Wee Kim Wee as the first of the five most recent terms of the office of the President for the purposes of Art 19B. After President Wee’s term of office, the office was next held by President Ong Teng Cheong, President S R Nathan (who held the office for two terms) and the incumbent President, Dr Tony Tan Keng Yam. Since none of these persons were members of the Malay community, the effect of Parliament’s choice is that the next presidential election, which is to be held in 2017 (“2017 election”), will be reserved for candidates from that community. 4 The specification of President Wee’s last term of office as the first term has given rise to a question as to the correct interpretation of Arts 19B and 164. The Appellant, Dr Tan Cheng Bock, contends that this specification by Parliament was contrary to the Constitution. He maintains that the discretion that Art 164 affords Parliament is not an unrestricted discretion. Rather, he contends that Parliament can only designate, as the first (in time) of the “5 most recent terms”, one of the terms of office of any of those Presidents who were elected to office directly by the citizens of Singapore rather than by Parliament. President Ong was the first President to be so elected. The Appellant 2 Tan Cheng Bock v AG [2017] SGCA 50 accordingly maintains that President Ong’s term of office is the earliest one that Parliament could lawfully have specified as the first term pursuant to Art 164. It follows, on this interpretation, that the next presidential election should not be reserved for candidates from the Malay community. 5 As against this, the Respondent, who is the Attorney-General (“AG”), argues that there is no such restriction on Parliament’s power under Art 164. Indeed, he contends that at the time Parliament passed the 2016 Amendment, Parliament had been apprised of the Government’s intention to specify President Wee’s last term of office as the first term. This the Respondent says is clear from the record of the Parliamentary debates. He maintains that in the circumstances, there can be no basis for concluding that Parliament then acted outside its constitutional limits when it subsequently specified President Wee’s last term of office as the first term – just as it had said it would at the time the relevant constitutional provisions were passed. 6 Properly framed, the issue we are asked to determine is what, if any, are the limitations on the “term of office” of the President that Parliament could lawfully choose to specify as the first term under Art 164. More specifically, the question is whether Parliament was restricted to choosing from the terms of office of the Presidents elected directly by the citizens of Singapore, as the Appellant contends. This has to be answered by interpreting the relevant constitutional provisions purposively, as mandated by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”). Background 7 On 5 May 2017, the Appellant filed Originating Summons No 495 of 2017 (“OS 495”) in the High Court seeking a declaration that: 3 Tan Cheng Bock v AG [2017] SGCA 50 (a) Section 22 of the Presidential Elections (Amendment) Act 2017 (Act 6 of 2017) (“PE(A) Act 2017”) is inconsistent with Arts 19B(1) and/or 164(1)(a) of the Constitution, and therefore void by virtue of Art 4 of the Constitution, which provides that the Constitution is the supreme law of Singapore and that any law enacted by Parliament which is inconsistent with it shall be void to the extent of the inconsistency; (b) In the alternative, the reference to President Wee in the Schedule referred to in s 22 of the PE(A) Act 2017 is inconsistent with Arts 19B(1) and/or 164(1)(a) of the Constitution, and therefore void by virtue of Art 4 of the Constitution. 8 The application was heard before a High Court judge (“Judge”) on 29 June 2016. On 7 July 2017, the Judge dismissed the application, providing his detailed reasons in a written judgment: see Tan Cheng Bock v Attorney-General [2017] SGHC 160 (“Judgment”). 9 On 12 July 2017, the Appellant filed the present appeal against the Judge’s decision. The appeal was expedited in view of the urgency of the matter: the Government had announced its intention to issue the writ of election for the next presidential election no later than 31 August 2017, that being the expiry of the term of office of the incumbent President, Dr Tony Tan (see Singapore Parliamentary Debates, Official Report (6 February 2017) vol 94), and it was common ground between the parties that we should resolve this appeal before the writ is issued. 10 The Appellant is a medical doctor by profession, and stood as a candidate in the last presidential election that was held in 2011. Before that, he served as a Member of Parliament (“MP”) for 26 years. Before the Judge, the 4 Tan Cheng Bock v AG [2017] SGCA 50 Respondent accepted that the Appellant had standing to bring this challenge under the Constitution (Judgment at [6]). For the reasons he gave at [7] of the Judgment, the Judge, too, thought that the Appellant satisfied the standing requirement. We proceed on the same basis. Evolution of the office of the President 11 At [8] to [29] of the Judgment, the Judge detailed the evolution of the office of the President since Singapore gained independence on 9 August 1965. For the purposes of this appeal, it is unnecessary for us to repeat this in full. Instead, we highlight only some key historical developments in the office of the President, so as to provide some context for the discussion that follows. 12 Singapore separated from the Federation of Malaysia and became an independent nation on 9 August 1965. Prior to that, while Singapore was a constituent state of the Federation, the Head of State of the State of Singapore was the Yang di-Pertuan Negara. On Independence, the Head of State of the new nation was designated as the President of Singapore. At that time, the office of the President was largely a ceremonial one, albeit with immense symbolic importance. The President was elected by Parliament for a four-year term: see Art 17(1) of the Constitution of the Republic of Singapore (1980 Reprint) (“Constitution (1980 Reprint)”). In keeping with the ceremonial and symbolic role of the office, the President’s powers, for the most part, could only be exercised on the advice of the Cabinet or a Minister acting under its general authority. Despite subsequent amendments to the Constitution which expanded the scope of the President’s powers, the ceremonial and symbolic function of the President has never been abrogated. Indeed, this remained at the core of the President’s role as the Head of State and the personification of a multi-racial nation, even as the office was reshaped over time. Singapore has had four 5 Tan Cheng Bock v AG [2017] SGCA 50 Presidents who were elected by Parliament: Encik Yusof bin Ishak, who had been the Yang di-Pertuan Negara and went on to become our first President; Dr Benjamin Sheares, who held office for three terms; Mr Devan Nair, who held office for one term; and President Wee, who held office for two terms and retired on 31 August 1993. 13 The year 1991 saw the transition to what is popularly referred to as the Elected Presidency.

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